A woman ambassador’s cause

C.B. Muthamma, India’s first woman ambassador, passed away on October 15 at the age of 85.

Frailty, thy name is woman, they say. That is not a true statement at all. So long as social justice is an integral part of our constitutional fundamentals and judges remain sensitive and not pachydermic, gender justice will remain a non-negotiable article of faith. Professional gender bias and discrimination have no place in the civilised scheme of things: those were traits of primitive societies. Unfortunately, our modern centuries are still often barbaric. Even some of our epics are not free from husbands having unjust authority over wives. The finer values of our cultural heritage accept brother and sister as equal. The culture of male domination is indeed seen in all religions.

The women of Arabia remained in large numbers in harems as sex commodities. Against this chaos, Prophet Mohammed fought and gave a legal persona to Muslim women. There are many misconceptions about Muslim women and divorce, which happened to be explained in detail in two of my judgments in the Kerala High Court (Souramma’s case and Subaida Beevi’s case). The great Prophet actually brought sanity into matrimony — as the judgments clarified.

Two statutes in the Travancore-Cochin State discriminated against Christian women in the matter of inheritance. These were struck down by the Supreme Court. On the whole, discrimination against women is unconstitutional in the light of Article 14 and 15.

In this background it is difficult to forgive the Government of India for the inequality that it had perpetuated in the Indian Foreign Service. This came up for consideration by the Supreme Court in Muthamma (1979 SC 183). She was brilliant, a topper in the All India Services examination. She was with the foreign service for long, but her case was overlooked when it came to posting her as an Ambassador.

She came to the court against her being denied the post on the ground of her gender. Solicitor-General Soli Sorabjee opposed the application saying that the rule overlooking women for ambassadorship was justified. The chances of leakage of confidential information of strategic significance was a dangerous risk, and so Muthamma’s case to be made an ambassador was rightly rejected, he argued. Sitting on the Bench, I could not agree with this submission and quashed the discriminatory provisions governing foreign service personnel. If a man who is in the foreign service married, he need not resign. I asked Mr. Sorabjee how leakage of information was not a possibility if a man married. This was flagrant prejudice against women and I struck down the rule.

Under the circumstances, my judgment was critical of the Central government’s partiality on the basis of gender, which was unconstitutional.

A few excerpts from the judgment are relevant:

“The written petition by Miss Muthamma, a senior member of the Indian Foreign Service, bespeaks a story which makes one wonder whether Articles 14 and 16 belong to myth or reality. The credibility of constitutional mandates shall not be shaken by governmental action or inaction but it is the effect of the grievance of Miss Muthamma that sex prejudice against Indian womanhood pervades the service rules even a third of a century after Freedom. There is some basis for the charge of bias in the rules and this makes the ominous indifference of the executive to bring about the banishment of discrimination in the heritage of service rules. If high officials lose hopes of equal justice under the rules, the legal lot of the little Indian, already priced out of the expensive judicial market, is best left to guess. This disturbing thought induces us to make a few observations about the two impugned rules which appear, prima facie, discriminatory against the female of the species in public service and have surprisingly survived so long, presumably, because servants of governments are afraid to challenge unconstitutional rule making by the Administration.

“That on numerous occasions the petitioner had to face the consequences of being a woman and thus suffered discrimination, though the Constitution specifically under Article 15 prohibits discrimination on grounds of religion, race, caste, sex or place of birth, and Article 14 of the Constitution provides the principles of equality before law...

“If a fragment of these assertions were true, unconstitutionality is writ large in the administrative psyche and masculine hubris which is the anathema for Part III haunts the echelons in the concerned Ministry. If there be such gender injustice in action, it deserves scrupulous attention from the summit so as to obliterate such tendency.

“If a married man has a right, a married woman, other things being equal, stands on no worse footing. This misogynous posture is a hangover of the masculine culture of manacling the weaker sex, forgetting how our struggle for national freedom was also a battle against woman’s thralldom.

“Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically ignored vis-a-vis half of India’s humanity, viz., our women, is a sad reflection on the distance between Constitution in the book and Law in Action.

“In the rat race of Indian official life, seniority appears to be acquiring a religious reverence. With characteristic fairness he has persuaded his client to agree to what we regard as a just gesture, viz., that the Respondent, Union of India, will shortly review the seniority of the petitioner, her merit having been discovered and her seniority to Grade II being recognised.”

Consequent to this ruling, Muthamma became an ambassador. She retired as one in 1982 after 32 years of service. She was active ever thereafter. She kept in touch with me since we were on the same wavelength regarding matters of gender justice. She continued to be an activist into retirement, and in critical matters she sought my support. Her faculties were fine and sensitive, and I found her to be sharp and just.

Her exit has weakened the cause of women’s claim for gender justice in India. I remember the Muthamma judgment being distributed at many a women’s meeting in support of their struggle for equality.

A generation of great men are born only through a generation of noble women. Robert Ingersoll put it thus: “There will never be a generation of great men until therefore has been a generation of free women — of free mothers.”